Big Data

Big Data

Recent court decisions now allow for business method patents, in time to protect the new computer-implemented big data technologies that are starting to come through in a major way. Now, with the computer industry expanding greatly, we have a developing area called big data and big data analytics. Big data analytics came about because of the large and complex data sets that they encompassed and regular, traditional software could not handle these large data sets. These large data sets arose because of the relatively inexpensive ways to acquire data information including wireless networks, cameras and RFIDs. All these data points meant larger data sets that were hard to analyze, manage, image, move and sort due to the sheer volume of data available. Data analytics were used in areas such as genetics and the prevention of disease, astrophysics and planetary science, predictive analytics, user-behaviour analytics, to combat crime and spot business trends. There were also other concerns with patenting computer-implemented applications. These concerns included objections for definiteness and the requirement that a computer was a necessary part of the invention. Now, with recent cases, such as the Amazon One-Click decision in Canada, business method or computer-implemented patents became a reality. By describing the algorithm, one imparted structure to the claims, thereby removing the problem of definiteness of the claims, and by explaining why a computer was an essential part of the invention, one allowed for patenting of the now-allowed business method patents in 2011.

To make use of big data, one needs to be able to analyze, image, query or sort these data sets. These data sets were also used to obtain user-behaviour characteristics. Because conventional software could not perform these functions, new software, specific to large data sets needed to be programmed and produced to handle the large data. These data sets were not esoteric. With these applications at hand, there stood, and still stands, to be a lot of invention in the area to assist with promoting big data analytics, but what about protecting our inventions and monetizing them?

Computer-implemented patents were available in the United States but not in Europe and, until 2011, not in Canada either. Until the Amazon One-Click case was heard in the District Court and Appeals Courts in Canada, business method or computer-implemented patent protection was not available in Canada. The Federal Court of Appeals found that the Examiners must have looked to a purposive construction of claims in order to have found the ability to patent an invention. The Court further reasoned that one must look at the invention as a whole and not just the inventive step as a separate part of the invention. As a result of this new business method ruling, there were Practice Notices to Examiners to provide them guidance to grant patents according to this judgment. Some successful business method patents have, therefore, been granted. Some, however, are not granted, when they do not expressly show why a computer is a necessary part of the invention and sometimes not when there is an algorithm missing.

Another suggestion was to prepare a patent application to give structure to the application by way of describing the algorithm. This removed the doubt of indefiniteness, which was a problem for computer-implemented patent applications. This often happened with a means plus function way to approach patent drafting. To avoid the indefiniteness rejection that often came with means-plus-function drafting claims. Adding an algorithm added structure to the means-plus-function removed the indefiniteness associated with this type of patent drafting. One must have remembered to explain how the algorithm changed the state of art and was an improvement in specification. One must have claimed the algorithm was a way to address the technological or state of art need for the invention. One could say, for example, that these calculations claimed in the patent application would have required a human one thousand years to calculate.

There were other tricks and tips involved in patenting computer-implemented inventions in Canada. Big data analytics had been poised to become a major area of invention and we, in Canada, have become prepared to offer inventors protection, which had always been a lucrative endeavour in Canada. With some tips and suggestions, practitioners had avoided the few quirks associated with the patent practice of computer-implemented inventions.

Since then, computer-implemented or business method patent protection has been available in Canada, and, along with careful drafting to avoid indefiniteness, patent protection of computer-implemented inventions has become a possibility. This new area of practice will enhance opportunities for those in patent practice in computer-implemented technologies in Canada as the area continues to expand